Delhi High Court
Oriental Insurance Co Ltd vs Pushpa Devi & Ors on 30 March, 2016
$~4
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 30th March, 2016
+ MAC.APP. 312/2011
ORIENTAL INSURANCE CO LTD ..... Appellant
Through Mr. Tarkeshwar Nath and Mr. Onkar
Nath, Adv.
versus
PUSHPA DEVI & ORS ..... Respondent
Through Ms. Roopali Chaturvedi, Adv. for R-1
to R-4
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT
R.K.GAUBA, J (ORAL):
1. Satya Prakash had retired from army service and was getting pension
of `8,742/- per month. He was 59 years old on the relevant date and was
still working for gain, having been engaged in private service of Geeta
Ashram Vidya Mandir from where he would receive salary of `8,190/- per
month. He died in a motor vehicular accident that occurred on 25.02.2008
on being hit by water tank bearing No.HR 61 4811 admittedly insured
against third party risk for the period in question with the appellant
insurance company (insurer). His widow and children (first to fifth
respondents herein) filed a claim petition (MACT case No.756/2009) before
the motor accident claims tribunal (tribunal) on 20.01.2009 impleading the
driver, owner and insurer of the offending vehicle as respondents. The
tribunal held inquiry and on that basis awarded compensation in the sum of
`14,26,000/- with interest from the date of filing of the petition till
realization calculating the award as under:
1) Loss of dependency Rs. 12,96,000/-
2) Loss of love and affection Rs. 1,00,000/-
3) Loss of consortium Rs. 10,000/-
4) Funeral expenses Rs. 10,000/-
5) Loss to estate Rs. 10,000/-
Total Rs. 14,26,000/-
(Rupees Fourteen Lacs Twenty Six Thousand Only)
2. Having been fastened with the liability, the insurer has come up in
appeal questioning the computation of loss of dependency by addition of the
entire pension receivable by the deceased during his lifetime to the earnings.
The objection essentially is that, after his death, his widow has been in
receipt of family pension from army, a fact which was admitted by Avinash
Dubey (PW1) one of the claimants, he being the son of the deceased. The
family pension, under the normal service rules, would be half of the pension
that the retired government servant is entitled to. In these circumstances, the
value of the family pension that would have been received by the widow
after the death would be in the sum of `4,371. This cannot treated as loss of
dependency. It is the balance of `4,371/- by which the income from pension
for the purposes of the family has been reduced which only deserved to be
added to the calculations.
3. Thus, the loss of dependency needs to be recomputed on the earnings
on (8,190 + 4,371) `12,561/- per month. Given the age of 59 years, the
tribunal rightly declined to add the element of future prospects. One fourth
of the income was deducted towards personal and living expenses, and
rightly so, since the number of dependents is five. In this view, the loss of
monthly dependency is worked out as (12,561 x 3 ÷ 4) `9,421/-. On the
multiplier of 9, the total loss of dependency comes to (9,421 x 12 x 9)
`10,17,468/-.
4. There is merit in the submission of the learned counsel for the
claimants (first to fifth respondents) that the award under the heads of loss of
consortium, funeral expenses and loss of estate is inadequate.
5. Following the view taken in Rajesh & Ors. v. Rajbir Singh & Ors.,
(2013) 9 SCC 54 and Shashikala V. Gangalakshmamma (2015) 9 SCC 150,
compensation in the sum of `1 lakh towards loss of consortium and
`25,000/- each towards loss of estate and funeral expense are added, besides
`1 lakh already awarded by the tribunal towards loss of love & affection.
Thus, the total compensation payable in the case comes to (10,17,468 +
2,50,000) `12,67,678/- rounded off to `12,68,000/-. Needless to add, it shall
carry interest as levied by the tribunal.
6. The tribunal had apportioned the compensation by specifying the
amounts falling to the share of each of the claimants. Since the
compensation has been reduced, with the three children having assumably
become self-reliant over the period, the shares of second to fourth
respondents are reduced to `1,50,000/- each, while maintaining the share of
fifth respondent (mother) at `1 lakh, the entire balance being payable to the
widow (first respondent) with proportionate interest.
7. By order dated 18.05.2011, the insurance company had been directed
to deposit the entire awarded amount with up-to-date interest with the
Registrar General within the period specified whereupon 50% was allowed
to be released. The Registrar General shall now calculate the amount
payable to the claimants in terms of the award modified as above from out
of the balance lying in deposit, refunding the excess with statutory deposit,
if made, to the insurer.
8. The appeal is disposed of in above terms.
R.K. GAUBA
(JUDGE)
MARCH 30, 2016/VLD
